Inside John Roberts’ Decades-Long Crusade Against the Voting Rights Act

John Glover Roberts, a 25-year-old graduate of Harvard Law School, arrived in Washington in early 1980. Harvard Law professor Morton Horwitz described Roberts as “a conservative looking for a conservative ideology in American history,” and he found that ideology in the nation’s capital, first as a clerk for Supreme Court Justice William Rehnquist and then as an influential aide in Ronald Reagan’s Justice Department.

At the time, Rehnquist and the Reagan administration were at the vanguard of a new conservative counterrevolution in the law—a legal backlash against the historic and liberal-leaning civil rights laws of the 1960s. Just months before Roberts came to Washington, the Supreme Court had significantly limited the scope of the Voting Rights Act (VRA) of 1965. As a young lawyer, Roberts eagerly took up the conservative cause, becoming a key foot soldier in the effort to preserve that decision and weaken the VRA.

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It was a fight Roberts would continue decades later, when he replaced Rehnquist as chief justice and authored the majority opinion in a landmark case gutting the VRA in 2013. Fifty years after the passage of the landmark civil rights law, and 35 years after he first worked so hard to dismantle it, Roberts remains at the center of an impassioned debate about voting rights in America, one that shows no signs of ending anytime soon.

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The Supreme Court’s initial weakening of the VRA began in Mobile, Alabama.

In 1925, thirty years before Rosa Parks declined to move to the back of a bus in Montgomery, Alabama, John LeFlore, a 25-year-old postal worker in Mobile, refused to give up his seat on a segregated streetcar to a white man. A scuffle ensued, and both men were arrested. The white man was promptly released while LeFlore remained in jail. The experience persuaded LeFlore to start a Mobile chapter of the NAACP.

Fifty years later, LeFlore visited the law office of Vernon Crawford, Mobile’s foremost black civil rights lawyer, and asked him to file a lawsuit challenging the structure of the city’s governing commission and school board. Despite African Americans’ constituting a third of the port city’s population, no black had ever been elected to a position of prominence in Mobile, because since 1911 city officials had been elected citywide, rather than from specific districts. That meant no black candidate could be elected without significant white support, which had never been forthcoming, and no white candidate with substantial black support had a realistic chance of winning office, either. Even after the passage of the VRA in 1965, blacks were shut out from influence in Alabama’s third-largest city.

LeFlore’s friend Wiley Bolden, a World War I veteran and insurance agent who had cofounded the Mobile NAACP, became the lead plaintiff in the lawsuit, which charged that Mobile’s government violated Section 2 of the VRA, a little-used provision whose language mirrored the Fifteenth Amendment. Unlike Section 5 of the law, which covered only select southern states, on a temporary basis, and gave the federal government the power to preemptively block discriminatory voting changes filed after 1965, Section 2 applied nationwide, on a permanent basis; put the burden of proof on plaintiffs to show that a voting change was discriminatory; and could be used to challenge electoral structures adopted before 1965, as was the case in Mobile.

After the lower courts ruled in favor of Bolden, finding that the city’s election system discriminated against African Americans, Mobile appealed to the U.S. Supreme Court. The debate revealed a fundamental divide about how much protection the VRA provided for minority voters and whether the right to vote stopped at the ballot box or extended to the halls of power.

In a surprising 6–3 decision on April 22, 1980, the court sided with Mobile. “Racially discriminatory motivation is a necessary ingredient of a Fifteenth Amendment violation,” wrote Justice Potter Stewart. “The Amendment does not entail the right to have Negro candidates elected, but prohibits only purposefully discriminatory denial or abridgment by government of the freedom to vote ‘on account of race, color, or previous condition of servitude.’”

Thurgood Marshall, the first African-American Supreme Court justice, drafted a furious dissent. “A plurality of the Court concludes that, in the absence of proof of intentional discrimination by the State, the right to vote provides the politically powerless with nothing more than the right to cast meaningless ballots,” Marshall wrote.

Every civil rights lawyer knew that intentional discrimination, which had never before been required under the VRA, was virtually impossible to prove. The decision represented the most significant setback for the VRA since its passage in 1965. And it was central to shaping John Roberts’s legal views.

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Roberts began clerking for Justice Rehnquist three months after the Mobile decision. The clerkship, from July 1980 to August 1981, would be a formative experience for the young lawyer.

Rehnquist’s cramped 20-by-15-foot office functioned as a federalist society before there was an official Federalist Society, the closest place to the center of an emerging conservative legal movement. Rehnquist, known as the Lone Ranger when he joined the court in 1971 because of his ultra-conservative views, proudly displayed a figurine of the character on his desk. He was an old-school states’ rights conservative, unafraid of taking deeply unpopular positions when it came to issues like civil rights.

In 1952, as a 28-year-old clerk to Justice Robert Jackson, Rehnquist had written an explosive memo as the court prepared to hear the first round of arguments in Brown v. Board of Education. “I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by ‘liberal’ colleagues, but I think Plessy v. Ferguson was right and should be re-affirmed,” Rehnquist wrote.

A year later he urged Jackson to uphold an all-white primary for a Texas Democratic club. “It is about time the Court faced the fact that the white people of the South do not like the colored people,” Rehnquist wrote. “The Constitution restrains them from effecting this dislike through state action but it most assuredly did not appoint the Court as a sociological watchdog to rear up every time private discrimination raises its admittedly ugly head.” On both occasions, Jackson—and the court—disagreed.

Ari Berman's book, Give Us The Ballot: The Modern Struggle for Voting Rights in America.

After clerking for Jackson, Rehnquist moved to Arizona, where Barry Goldwater’s brand of libertarian conservatism was on the rise. Rehnquist urged Goldwater to oppose the Civil Rights Act, arguing that the federal government couldn’t tell private property owners what to do, and wrote a major speech for him during the 1964 campaign defending the vote.

“It has been well-said that the Constitution is color-blind,” Goldwater remarked at the Conrad Hilton in Chicago. “And so it is just as wrong to compel children to attend certain schools for the sake of so-called integration as for the sake of segregation.” Rehnquist’s opposition to civil rights laws on federalism grounds and the rebranding of that opposition as principled “color blindness” would became a staple of conservative jurisprudence on civil rights issues.